[Cite as State v. Evans, 2011-Ohio-2153.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95692

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

REGINALD EVANS

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED; REMANDED FOR CORRECTION 

OF SENTENCING ENTRY

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-400717 

 BEFORE: Blackmon, P.J., Boyle, J., and E. Gallagher, J. 

 RELEASED AND JOURNALIZED: May 5, 2011

APPELLANT
2

Reginald Evans, Pro se 

Inmate No. 406-977 

Allen Correctional Institution 

2338 North West Street 

Lima, Ohio 45802-4501 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

By: Kristen L. Sobieski 

Assistant County Prosecutor 

Justice Center 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

PATRICIA ANN BLACKMON, P.J.: 

{¶ 1} Appellant Reginald Evans (“Evans”) appeals pro se the trial 

court’s denial of his motion to vacate his sentence and assigns the following 

error for our review: 

“The trial court erred as a matter of law in refusing to 

vacate the void sentence in this case.”
3

{¶ 2} Having reviewed the record and pertinent law, we affirm the trial 

court’s decision but remand for the trial court to correct the journal entry. 

The apposite facts follow. 

Facts

{¶ 3} On January 9, 2001, Evans was charged with one count of 

aggravated murder with a three-year firearm specification. Evans exercised 

his right to a jury trial, and on May 29, 2001, the jury found Evans guilty of 

the lesser offense of murder with a three-year firearm specification. The 

trial court sentenced Evans to 15 years to life with a consecutive sentence of 

three years for the firearm specification. 

{¶ 4} Evans filed a direct appeal, and we affirmed his conviction and 

sentence. State v. Evans, Cuyahoga App. No. 79895, 2002-Ohio-2610. In 

addition to filing an appeal, Evans also filed a petition for postconviction 

relief, which the trial court denied. Evans appealed, and we affirmed the 

trial court’s decision. State v. Evans, Cuyahoga App. No. 87017, 

2006-Ohio-3490. 

{¶ 5} On July 21, 2010, Evans filed a “motion to vacate void sentence” 

in which he argued the trial court erred by imposing postrelease control, 

rendering his entire sentence void. The trial court denied the motion. 

Evans now appeals the trial court’s denial of the motion. 

Postrelease Control
4

{¶ 6} In his sole assigned error, Evans argues the trial court’s 

imposition of postrelease control for murder was not authorized pursuant to 

R.C. 2967.28; therefore, he claims his entire sentence is void, and he has a 

right to a new sentencing hearing. 

{¶ 7} Evans was convicted of murder with a firearm specification. 

Murder is not a classified felony; it is a special felony subject to a sentence of 

life imprisonment with parole eligibility after 15 years. Thus, the 

postrelease control statute does not apply to a murder conviction. State v. 

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶36; R.C. 

2967.28. R.C. 2967.28(B) provides that postrelease control applies to “each 

sentence to a prison term for a felony of the first degree, for a felony of the 

second degree, for a felony sex offense, or for a felony of the third degree that 

is not a felony sex offense and in the commission of which the offender caused 

or threatened to cause physical harm to a person.”1 Thus, the statute does 

not provide postrelease control for unclassified felonies. Instead of 

postrelease control, when an offender convicted of an unclassified felony is 

released from prison he or she is subject to parole. Clark at ¶36; R.C. 

2967.13(A)(1). 

 1

For lesser felonies, R.C. 2967.28(C) provides felonies of the third, fourth, or 

fifth degree that are not subject to section (B) receive a period of up to three years 

postrelease control.
5

{¶ 8} Here, the trial court imposed postrelease control on Evans 

without statutory authority to do so. Evans’s murder conviction subjects him 

to parole not postrelease control. The query is what should be done to 

correct this error. This court has previously found in analogous situations 

(where defendant was convicted of murder and postrelease control was 

imposed) that the proper remedy for such error was not to find the sentence 

void and remand for resentencing, because the defendant, pursuant to the 

statute, is not subject to postrelease control. State v. McIntosh, Cuyahoga 

App. No. 93714, 2010-Ohio-6471; State v. Rolling, Cuyahoga App. No. 95473, 

2011-Ohio-121; State v. McCree, Cuyahoga App. No. 87951, 2007-Ohio-268; 

State v. Austin, Cuyahoga App. No. 93028, 2009-Ohio-6108. As this court in 

Austin explained: 

“While this court has recently held that such broad 

language is insufficient to satisfy the statutory 

notification requirements when the defendant faces 

mandatory postrelease control, we find the instant case 

distinguishable because Austin does not face any term of 

postrelease control. See generally State v. Siwik, 

Cuyahoga App. No. 92341, 2009-Ohio-3896. Accordingly, 

we do not find that the sentencing entry is void because it 

limits postrelease control to what is authorized under R.C. 
6

2967.28 and, therefore, does not actually impose any term 

of postrelease control.” Id. at ¶7. 

{¶ 9} Likewise, in the instant case, the trial court limited postrelease 

control to what is authorized under R.C. 2967.28 by stating in the sentencing 

entry: “Postrelease control is a part of this prison sentence for the maximum 

period allowed for the above felony (s) under R.C. 2967.28.” Because R.C. 

2967.28 does not provide for postrelease control for special felonies, no 

postrelease control was imposed. Thus, while the discussion of postrelease 

control in the sentencing entry was incorrect, it did not render Evans’s 

sentence void. Consequently our approach is to remand the matter for the 

trial court to correct the sentencing entry to eliminate the postrelease control 

language. 

{¶ 10} We acknowledge that other districts have held that the 

imposition of postrelease control as part of the special felony sentence voids 

the entire sentence and have ordered the case remanded for resentencing. 

State v. Crockett, 7th Dist. No. 07-MA-233, 2009-Ohio-2894; State v. Long, 1st 

Dist. No. C-100285, 2010-Ohio-6115. However, given the Ohio Supreme 

Court’s decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 

N.E.2d 332, these cases are no longer good law. The Fischer court held that 

when postrelease control is not properly imposed only the postrelease control 
7

part of the sentence is void, not the entire sentence. Accordingly, Evans’s 

sole assigned error is overruled and judgment is affirmed. 

{¶ 11} However, we remand the case to the trial court to correct the 

journal entry to eliminate any reference to postrelease control. 

Furthermore, it is ordered that appellee recover of appellant its costs 

herein taxed. 

This court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 

 

PATRICIA ANN BLACKMON, PRESIDING JUDGE 

MARY J. BOYLE, J., and 

EILEEN A. GALLAGHER, J., CONCUR